State of Texas v. United States of America, and Interstate Commerce Commission

PATRICK E. HIGGINBOTHAM,

Circuit Judge, concurring in part and dissenting in part:

I join the panel majority with respect to the jurisdictional and procedural issues addressed in Parts I — III of the court’s opinion. I also agree with much of what the majority says about the standard of review appealable to the ICC’s ruling, and about *1562the reasonableness of that ruling. Ultimately, however, I believe that the ICC’s construction of the law twists precedent unreasonably. Indeed, at crucial junctures the ICC’s interpretation of the Motor Carrier Act contradicts itself. The consequence of the ICC’s…